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By now you’ve probably heard about the new rule promulgated by the U.S. Food and Drug Administration (FDA) regarding nutrition labeling of menu items in restaurants and vending machines. This is not to be confused with existing state and city labeling requirements. If you’re like me, you will ignore the labels and order whatever you damn well please on those rare occasions when you eat at a covered establishment. If you operate a covered establishment, though, it’s important that you talk with your attorney to make sure that you comply. Below is a summary of the regulations (with a focus on wine served in restaurants and similar retail establishments, of course). This is just a summary, meaning that a lot of information is left out for the sake of brevity, so consult your attorney to ensure compliance.

Covered Establishments

Not all dining establishments are covered. The new rule defines a “covered establishment” as:

a restaurant or similar retail food establishment that is a part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership, e.g., individual franchises) and offering for sale substantially the same menu items, as well as a restaurant or similar retail food establishment that is [voluntarily] registered to be covered.[1]

[21 C.F.R. § 101.11(a).] “Restaurants and similar retail food establishments” is construed liberally,[2] but as long as you don’t eat at large chain joints, you can still frolic in the blissful ignorance of label-free dining. You can have your sweet, sweet Sauternes and drink it, too! If you do dine at large chain establishments, a) you probably aren’t drinking Sauternes, and b) if you are, you’ll be able to see how much sugar you’re consuming. As I mentioned above, for most consumers, the new rule probably won’t be life-changing. If you operate a covered establishment, however, this reg’s for you.

Covered “Foods”

So what foods do covered establishments have to label? Mostly “standard menu items.”[3] A standard menu item is “a restaurant-type food that is routinely included on a menu or menu board or routinely offered as a self-service food or food on display.” A restaurant-type food is any food that is:

(i) Usually eaten on the premises, while walking away, or soon after arriving at another location; and(ii) Either:

(A) Served in restaurants or other establishments in which food is served for immediate human consumption or which is sold for sale or use in such establishments; or(B) Processed and prepared primarily in a retail establishment, ready for human consumption, of the type described in paragraph (ii)(A) of this definition, and offered for sale to consumers but not for immediate human consumption in such establishment and which is not offered for sale outside such establishment.

[Id.] What’s tricky here is that the word “alcohol” does not appear in the definition. In fact, not even “beverage” is used. The FDA intended that alcohol be covered, though, as its comments make clear. The agency considered a blanket exemption for alcoholic beverages, but it appears that the agency found public comments opposing such exemption persuasive. Thus, only alcoholic beverages that are “food on display” and are not self-service food are exempt from the rule.[§ 101.11(b)(2)(B).] In other words, alcohol that is on display behind a bar doesn’t have to be labeled.

Requirements

By December 1, 2015, Covered establishments must provide the following information on menus and menu boards:

The number of calories contained in each standard menu item listed on the menu or menu board, as usually prepared and offered for sale

The statement “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”[4]

The statement “Additional nutrition information available upon request”

In addition, covered establishments must make the following information available to customers in writing upon request:

Total calories (cal);

Calories from fat (fat cal);

Total fat (g);

Saturated fat (g);

Trans fat (g);

Cholesterol (mg);

Sodium (mg);

Total carbohydrate (g);

Dietary fiber (g);

Sugars (g); and

Protein (g)

[§ 101.11(b)(2)(ii)(A).] Beverages that are not self-service—including table service alcoholic beverages—are subject to additional requirements. For example, their calories must be declared based on the full volume of the cup served without ice, unless the covered establishment ordinarily serves them with a fixed amount of ice per cup size). [§ 101.11(b)(2)(i)(A)(9).] For self-service beverages, caloric values must be declared on adjacent signs.

Methodology

Most alcoholic beverage labels do not disclose nutrition information, so how can covered establishments provide this information to consumers? The new rule gives several options. Establishments may use nutrient databases, cookbooks, laboratory analyses, or other reasonable means, to determine nutrient content. They must provide to the FDA upon request “information substantiating nutrient values, including the method and data used to derive these nutrient values.”

The Upshot

The new requirements are somewhat complex, as the many nuances in the public comments make clear. The burden is on chain restaurants to provide basic nutrition information about the foods and beverages that they serve, the assumption being that the average consumer is sufficiently educated to make sense of nutritional value data and make healthful choices based on it. Those of us who don’t eat at chain establishments (or who eat at chains that are too small to be covered) will be largely unaffected by the regulation. Those who do may finally know exactly how many calories are in their cup.

[1] A restaurant or similar retail food establishment that is not covered may voluntarily register to be subject to the requirements established in this section. [§ 101.11(b).] This may be desirable when state law is more restrictive than the FDA regulation.

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